NOTES OF CASES. N Pittsburgh, Cinc. & St. Louis Railway Co. v. railroad train upon which plaintiff was a passenger had received from plaintiff a five dollar bill, out of which he was to take for fare twenty-five cents. Being unable to then procure change he kept the bill, telling plaintiff he would change it at the station at which plaintiff was to alight. Plaintiff left the train at the station, and the train was moving off with the conductor, who had not given up the bill or made change, when plaintiff climbed on the platform and asked for his change. The conductor handed back the bill and there was evidence that he told plaintiff to get off the train, which was moving with some speed, as quickly as possible. Plaintiff did so at a point beyond where passengers usually alighted, and was injured. No compulsion was used to cause plaintiff to leave, and no attempt was made to stop the train. The court held that the relation of passenger and carrier did not exist between plaintiff and the company at the time he was injured, and that the duties and obligations of the company toward him were only such as existed toward the general public; that the failure of the conductor to return the money before leaving the station did not exempt plaintiff from the exercise of proper care and prudence, and that if the conductor ordered or directed plaintiff to get off the train while it was in motion, at a place where it was not prudent to make the attempt, each order or direction, without compulsion, did not warrant the plaintiff to do a hazardous or imprudent act and impute the consequences to the company, and that whether plaintiff's act was an imprudent one, amounting to contributory negligence, was for the jury to determine. In Filer v. N. Y. Cent. R. R. Co., 49 N. Y. 47, it is held that when a passenger upon a railroad, by the wrongful act of the company, is put to an election between leaving the cars while they are moving slowly, or submitting to the inconvenience of being carried by the station where he desires to stop, the company is liable to the consequences of his choice, provided it is not exercised wantonly or unreasonably. To the same effect is Delematyr v. Milwaukee, etc., R. R. Co., 24 Wis. 578. In McIntire v. N. Y. Cent. R. R. Co., 37 N. Y. 288, a similar rule was held where a passenger was injured in attempting to pass from one car to another in a moving train, under direction of an employee of the company; in Warren v. Fitchburg R. R. Co., 8 Allen, 227, where a person who had purchased a ticket was struck by a train while crossing the track under the direction of the ticket agent; and in Sweeney v. Old Colony R. R. Co., 10 Allen, 358, where a person was injured by a train in crossing the track after he had been told by the company's flagman that it was safe. See, also, Gaynor v. Old Colony R. R. Co., 100 Mass. 208; Penn. R. R. Co. v. Kilgour, 32 Penn. St. 292; Lambeth v. North Carolina R. R. Co., 66 N. C. 494. In Mut. Life Ins. Co. v. French, 30 Ohio St. 240, a policy of life insurance contained the usual clause of forfeiture for non-payment of premiums. The premiums were payable one-half cash and the other half by a note. Upon the 6th of July, 1867, the day the premium was due, the agent of the company received the check of assured, dated July 25, 1867, for the half cash due, and a six months' note, giving the renewal receipt for a year. The note contained the clause "if not paid at maturity said policy is to be null and void.” Neither check nor note was paid. The court held that the mere fact that the note was not paid at maturity did not of itself avoid the policy. It gave the insurance company the option of declaring a forfeiture, but this option must be asserted by clear and unequivocal acts. The clause of forfeiture, being inserted in the note for the benefit of the company, might be waived by failure to act, or other circumstances evincing an intention not to claim the benefit of the stipulation. Whether the company had exercised such option, or waived its rights, was held to be a question of fact for the jury, under all the circumstances of the case. This is an application of the rule that such a clause being introduced for the benefit of the insurance company merely makes the policy voidable at its election, and not absolutely void upon a mere payment of the note. See Bouton v. Ain. Mut. Life Ins. Co., 25 Conn. 542; Jacobs v. Mut. Life Ins. Co., 5 Big. 48; Wing v. Hervey, 27 E. L. & Eq. 140; Buckbee v. U. S. Mut. Ins. & Trust Co., 18 Barb. 541; Sheldon v. Conn. Mut. Ins. Co., 25 Conn. 207; Goit v. Nat. Prot. Ins. Co., 25 Barb. 189. In the case at bar the company retained the check and note and refused to return the same. The court held that this amounted to a waiver of the forfeiture. This is an application of the principle that forfeitures are not favored at law, and very slight circumstances are required to constitute a waiver. A receipt of premium after it is due has been often held to be a waiver. See Froelich v. Atlas Life Ins. Co., 47 Mo. 406; Sims. v. State Ins. Co., id. 54; Hodson v. Guardian Life Ins. Co., 97 Mass. 144; Thompson v. St. Louis Mut. Life Ins. Co., 52 Mo. 469. And even an acknowledgment of the receipt Teutonia of premiums has been held sufficient. Life Ins. Co. v. Anderson, 77 Ill. 384; Ill. Cent. Ins. Co. v. Wolf, 37 id. 354; Prov. Life Ins. Co. v. Fennell, 49 id. 180. See, also, Helme v. Ins. Co., 61 Penn. St. 707; Fitzpatrick v. Ins. Co., 25 La. Ann. 443; Ripley v. Ins. Co., 29 Barb. 552; Co. Litt. 218 a; Shepp. Touchstone, 153; Lessee of Boyd et al. v. Talbert, 12 Ohio, 212; Smith v. Whitbeck et al., 13 Ohio St. 471; Kellogg v. Union Co., 12 Conn. 7 LIABILITY OF MARRIED WOMEN FOR DEFICIENCY UNDER FORECLOSURE. A The CASE presenting peculiar and interesting questions of law has just been decided by the Court of Appeals of New York State, involving the liability of married women as mortgagees in foreclosure proceedings. We refer to the case of Vrooman v. Harriet B. Turner, impleaded. gravamen of the complaint was that the defendant took a conveyance of certain premises in which appeared the following provision: "Subject, nevertheless, to the payment of a certain indenture of mortgage, bearing date the 5th day of August, 1873, made and executed by Charles E. Evans to John W. Eddy, to secure the principal sum of fifty-five hundred dollars and the interest thereon, and recorded in the office of the Register of the county of Kings, in Liber number 1166 of Mortgages, page 22, on the 9th day of August, A. D. 1873, which mortgage the party hereto of the second part hereby covenants and agrees to pay off and discharge, the same forming part of the consideration therefrom." The case was tried below before a referee, who decided as matter of law, that the plaintiff was entitled to the usual decree for the foreclosure and sale | of the mortgaged premises, and if the proceeds of such sale "be insufficient, that the plaintiff have judgment for the amount of said deficiency against Charles E. Evans, the mortgagor and obligor, and against Harriet B. Turner, who, by assuming the payment of the said mortgage as a part of the consideration of the conveyance of the mortgaged premises to herself, has become, and is in law, personally liable therefor." On the trial the counsel of the defendant requested the referee to find that the covenant was not for the benefit of the separate estate of said defendant, which the referee declined to do, and an exception was taken. The defendant appealed to the General Term of the Supreme Court for the Second Department, and largely rested her case upon the principles of law enunciated by the Court of Appeals in the cases of Trotter v. Hughes, 12 N. Y. 74; and King v. Whitely, 10 Paige, 465, claiming that they substantially decided that where, as in the present case, the grantor in a conveyance is not personally liable to the holder of the mortage to pay the same, his grantee is not liable, although assuming in terms to pay the same. The defendant, however, in that case, did not undertake personally to pay the mortgage, and the judge at the General Term remarked that "the decision would have been fully as satisfactory if it had been placed on that ground. The questions presented and discussed in Trotter v.. Hughes created much conflict of judicial opinion, but by the case of Burr v. Beers, 24 N. Y. 178, it was held in general terms that a mortgagee could maintain a personal action against a grantee of mortgaged premises, who assumes to pay the incumbrance; that if one person makes a promise to another for the benefit of a third person, such third person may maintain an action upon the promise. And thus, under the principles decided in Burr v. Beers, the General Term judge held that the defendant, Harriet B. Turner, undertook to pay her own debt and that there was no reason in law or morals why she should not do it. On the question of coverture, he said: "We think that the coverture of the defendant was no defense to this action. The liability was contracted upon the purchase of real property by the defendant in her own name, which became her separate estate, and it was a contract to pay a portion of the purchase-money, and was therefore for the benefit of her separate estate." Upon the question of liability of the defendant, Mrs. Turner, under the covenant per se, the respondent cited Thorpe v. Keokuk Coal Co., 48 N. Y. 253; Coster v. Mayor of Albany, 43 id. 411; Secor v. Lord, 3 Keyes, 525; Lawrence v. Fox, 20 N. Y. 268; Burr v. Beers, 24 id. 178; Garnsey v. Rogers, 47 N. Y. 233; and on the question of coverture, Frecking v. Rolland, 53 N. Y. 425, and Maxon v. Scott, 55 id. 247. In the case under consideration, the defendant's grantor had not assumed the payment of the mortgage, and the prime question was whether, under the circumstances, covenant to assume the same constituted a cause of action. This question seems to be clearly decided in King v. Whitely and Trotter v. Hughes, that in such case it does not constitute a cause of action. The case, Lawrence v. Fox, 20 N. Y. 268, cited by the respondent, only decided that, where one person loans money to another upon his promise to pay it to a third party, to whom the party so lending the money is indebted, the contract thus made by the lender is made for the benefit of his creditor, and the latter can maintain an action upon it, without proving an express promise to himself from the party receiving the money. The opinion of Judge Rapallo on the case of Lawrence v. Fox is very clear and satisfactory. In the course of his review of the case (see Garnsey v. Rogers, 47 N. Y. 233) he says he does not understand that that case went so far as to hold every promise made by one person to another, from the performance of which a third person would be benefited, gives a right of action to such third person, he being privy neither to the contract nor the consideration. In such cases the contract should have been made for his benefit. Vide the English cases of Dutton v. Poole, 1 Ventris, 318; Price v. Eaton, 4 Barn. & Adol. 433, and Lilly v. Hays, 5 Ad. & Ellis, 548. A case of much weight in favor of the appellant in the case under consideration is that of Merritt v. Green, 55 N. Y. 270. We do not see that the case of Burr v. Beers, cited by the respondent, was of much avail, for in that case the defendant retained in his hands a portion of the purchase-money, agreeing to discharge with it the debt his grantor owed the plaintiff, and in this case, Vrooman v. Mrs. Turner, the defendant simply bought the interest her grantor (Sanborn) had, who held the premises subject to the mortgage, but was not liable for the payment of the same. On the question whether Mrs. Turner was bound by the covenant contained in the deed from Sanborn, her grantor, wherein it is recited that she agrees to pay the mortgage, the appellant cited the following pertinent cases: Chamberlain v. Parker, 45 N. Y. 569; Ballin v. Dillaye, 37 id. 45; White v. McNett, 33 id. 371; and on the point as to affecting her separate estate, Yale v. Dederer, 22 N. Y. 450; Corn Ex. In. Co. v. Babcock, 42 id. 613. The Court of Appeals, in deciding the questions raised, adverted to King v. Whitely, supra, decided in 1843, the first case on the precise question in the case under review, and in effect observes, that it was conceded by the Chancellor that if the grantor had been personally liable to the holder of the mortgage for its payment, the holder of such mortgage would have been entitled in equity to the benefit of the agreement recited in such conveyance, to pay off the mortgage, and to a decree over against the grantee for the deficiency. This would have been in accordance with a well-established rule in equity which gives to the creditor the right of subrogation to, and the benefit of any security held by a surety for the re-enforcement of the principal debt, and in the case supposed, and by force of the agreement | recited in the conveyance, the grantee would have become the principal debtor, and the grantor would be a quasi surety for the payment of the mortgage debt. See Halsey v. Reed, 9 Paige, 446; Curtis v. Tyler, id. 432; Burr v. Beers, 24 N. Y. 178. In King v. Whitely, supra, the Chancellor in effect decided, that, if the grantor had been personally liable to the holder of the mortgage for the payment of the mortgage debt, the holder of it would have been entitled to the benefit of the agreement recited in such conveyance, on the principle of equity which gives to the creditor the right of subrogation of the security held by a surety in such cases, the grantee thereby becoming the principal debtor, and the grantor a quasi surety for the payment of the mortgage. Halsey v. Reed, 9 Paige, 446; Curtis v. Tyler, id. 432. In his elaborate opinion, in Vrooman v. Mrs. Turner, Allen, J., in commenting upon the principle which governs such cases, observes: "The rule which exempts the grantee of mortgaged premises subject to a mortgage, the payment of which is assumed in consideration of the conveyance, as be tween him and his grantor, from liability to the Vide In view of these several authorities it will be clearly observed that the General Term, in holding that the defendant, Mrs. Turner, "was bound to pay the whole consideration for the premises," and that it was "simply an agreement to pay her own debt," was giving the adjudicated cases on this general question, as the mariner would say, too much sea And thus Judge Allen, in closing his long opinion, concludes, that the court below erred in giving judgment against the appellant for the deficiency after the sale of the mortgaged premises, and that so much of the judgment as directed her to pay the same should be reversed, in which the court concurred, except Earl, J., dissenting. room. The case thus decided is a clear and satisfactory exposition of the equitable principles governing the liability of grantees where the grantor has never assumed to pay the mortgage sought to be foreclosed. In the view taken of the case under considera tion, the Court of Appeals did not pass directly upon the defense raised as to the defendant being a married woman and relieved from the covenant thereby. It was not necessary. We will, however, in addition to the authorities cited above, refer to the Manhattan Brass and Manufacturing Company v. Henrietta Thompson, 58 N. Y. 80, wherein Chief Justice Church has written an exhaustive opinion on that general question. His conclusions are as to when married women's contracts may be enforced : (1) When created in or about carrying on a trade or business of the wife. 35 Barb. 78; Frecking v. Rolland, 53 N. Y. 422. (2) When the contract relates to or is made for the benefit of the separate estate. 36 N. Y. 600, and 37 id. 35. (3) When the intention to charge the separate estate is expressed in the instrument or contract by which the liability is created. 18 N. Y. 265; 22 id. 450; Moxon v. Scott, 55 id. 247. The act of 1862 (Laws of N. Y., ch. 172, p. 343), in regard to married women, provides that they may trade or do business on their sole and separate account; and gives a married woman, possessed of real estate as her separate property, the right to do any act with reference to the same, with the same effect as if she were unmarried. She may also sue and be sued in the same manner as a feme sole. And as Davis, J., observes, in the case of Quassaic National Bank of Newburgh v. Charlotte A. Waddell, 1 Hun, 131, the law takes off for her protection all the embarrassment of the married relation in respect of separate real estate, and makes her in regard to it a feme sole, pro hac vice, and it continues that peculiar condition in all matters having relation to separate property as well where she is sued as where she sues. We have thus reviewed the points and the law presented in the case of Vrooman v. Mrs. Turner (not yet reported), and have presented authorities bearing upon the principal questions involved, and believe we have touched upon and cited all of the authorities of value on the general issues discussed. JOHN F. BAKER. RIGHT OF PHYSICIANS TESTIFYING AS EXPERTS TO COMPENSATION. SUPREME COURT OF INDIANA, NOVEMBER, 1877. BUCHMAN V. STATE. While a physician or surgeon, when called upon, must attend and testify to facts within his knowledge for the same compensation in the way of fees as any other witness, he cannot be compelled to give a professional opinion without additional compensation. Accordingly a commitment, of a physician for refusing to testify as an expert in a criminal case without reasonable compensation therefor held erroneous. is, sometimes, a partial retention of the menses after the main flow has ceased; he refused to answer unless reasonably compensated before testifying as a medical expert. He refused to answer another question, saying that this answer would depend upon his professional knowledge of the subject, and he would not give it without being paid. The court held that the witness was required by law to answer the questions without compensation other than the ordinary witness fee, and the witness persisting in his refusal to answer, he was committed as for a contempt, and thereupon took this appeal. WORDEN, J. The question presented, being a novel one in Indiana, so far as we are advised, and au important one, we have bestowed such time and care upon its consideration as its importance seemed to require. It must be and is conceded that a physician or surgeon, when called upon, must attend and testify to facts within his knowledge, for the same compensation, in the way of fees, as any other witness. In respect to facts within his knowledge, he stands upon an equality, in reference to compensation, with all other witnesses. But the question presented is, whether he can be compelled to give a professional opinion without compensation other than the ordinary fees of witnesses. In England, there is some diversity in the decisions in respect to the question whether an attorney or medical man is entitled to higher compensation for attendance as a witness than ordinary witnesses. This diversity, however, relates to witnesses required to testify to facts, and not to give professional opinions. In respect to professional opinions, we are not aware of any diversity of decision. In note 2 to section 310, 1 Greenl. Ev., 13th ed., it is said: "Au additional compensation for loss of time was formerly allowed to medical men and attorneys, but this rule is now exploded. But a reasonable compensation paid to a foreign witness, who refused to come without it, and whose attendance was essential in the cause, will, in general, be allowed and taxed against the losing party. See Lonergan v. The Royal Exchange Assurance, 7 Bing. 725; 8. C., id. 729; Collins v. Godefroy, 1 B. & Ad. 950. There is also a distinction between a witness of facts and a witness selected by a party to give his opinion on a subject with which he is peculiarly conversant from his employment in life. The former is bound as a matter of public duty to testify to facts within his knowledge. The latter is under no such obligation, and the party who selects him must pay him for his time before he will be compelled to testify. Webb v. Paige, 1 Car. & Kir. 23." The case of Lonergan v. The Royal Assurance, referred to in the above note, was not the case of a witness called to give a professional opinion, but the witness was a foreign sea captain, without whose presence the plaintiff's attorney "deemed it unsafe to trust the trial of the cause to written depositions, so long as he could prevail on the captain to remain in England to give his evidence personally on the trial before the jury; inasmuch as the demeanor and manner of Captain Moffatt's giving his evidence before the jury might have great weight with the jury, in addition to his intelligent and gen APPEAL from an order of commitment. The appel- tlemanly appearance." Tindal, C. J., said, amongst lant, Dr. Buchman, was called to testify as a witness at the trial of one Hamilton for rape. He was asked whether or not, in female menstruation, there other things: "But the general rule has been that when witnesses attend under a subpoena, none receive any allowance for loss of time, except medical men and attorneys. If that rule were to undergo revision, I cannot say that it would stand the test of examination. There is no reason for assuming that the time of medical men and attorneys is more valuable than that of others whose livelihood depends on their own exertions. But that rule is not applicable to the case of a foreign witness, who may refuse to attend if the terms he proposes are not acceded to. If he asks only what is reasonable, I cannot see why it should not be allowed, and be charged to the unsuccessful party." The case which is supposed to have exploded the rule that attorneys and medical men are to have additional compensation for loss of time, is that of Collins v. Godefroy, cited in the above note. In that case Collins sued Godefroy, to recover a remuneration for plaintiff's loss of time, in attending as a witness, under a subpoena issued by Godefroy, in a case in which Godefroy was a party. The plaintiff attended six days as a witness, but was not called upon to give his evidence. Lord Tenterden, C. J., said: "If it be a duty imposed by law upon a party regularly subpoenaed to attend from time to time to give his evidence, then a promise to give him any remuneration for loss of time incurred in such attendance is a promise without consideration. We think such a duty is imposed by law, and on consideration of the statute of Elizabeth, and of the cases which have been decided on the subject, we are all of the opinion that a party cannot maintain an action for compensation for loss of time in attending a trial as a witness. We are aware of the practice which has prevailed in certain cases of allowing as costs between party and party so much per day for the attendance of professional men, but that practice cannot alter the law. What the effect of our decision may be is not for our consideration. We think on principle that an action does not lie for a compensation to a witness for loss of time in attendance under a subpoena." But, notwithstanding the case above noticed, the rule allowing professional meu additional compensation was followed in England as late as 1862. In the case of Parkinson v. Atkinson, 31 L. J. (N. S.) 199, the master had allowed the expenses of an attorney who was called as a witness, but did not give professional evidence, on the higher scale allowed to professional witnesses. On motion for a rule to show cause why the taxation should not be reviewed, Earle, C. J., said: "We do not approve of the rule which is said to prevail in criminal cases, that if a surgeon is called to give evidence not of a professional character, he is only to have the expenses of an ordinary witness. We think the master was quite right in allowing the expenses of this witness on the higher scale." So, also, in the case of Turner v. Turner, Jurist, 1859, p. 839, the master allowed one Marcus Turner, a barrister, of London, one pound and a shilling a day for attendance as a witness. The Vice-Chancellor said: "The right of a professional man to one pound and a shilling per day was founded on the fact of his being abstracted from his functions. It was unnecessary to say what classes came within the definition professional man,' but there was no doubt that a barrister did, and if subpoenaed as a witness, he had a right to receive the remuneration, small or scanty as it was." The motion to vary the taxation was overruled. The foregoing cases, however, do not decide the point involved here, and they have been noticed rather with a view of showing that they are not in conflict with the right claimed by the appellant than as establishing that right. We come now to authorities more directly in point. The case of Webb v. Paige, cited in the above note from Greenl. Ev., decided in 1843, was an action for negligence in carrying goods. A witness was called for the plaintiff to speak of the damage sustained by the goods, consisting of cabinet work, and the expense that would be necessary to restore or replace the injured articles. The witness demanded compensation, and Maule, J., in deciding the point, used the language set out in the latter part of the note above cited from Greenleaf. The witness, upon receiving an undertaking for his pay, was examined. This is the only English case that bears directly upon the point, of which we have any knowledge. The American cases are not numerous, and we proceed to notice such as there are. In the Matter of Roelker, Sprague, 276, during a trial upon an indictment, the district attorney moved for a capias to bring in a witness, who had been subpoenaed to testify as an interpreter. But Sprague, J., said: "A similar question had heretofore arisen as to experts, and he had declined to issue process to arrest in such cases. When a person has knowledge of any fact pertinent to an issue to be tried, he may be compelled to attend as a witness. But to compel a person to attend because he is accomplished in a particular science, art or profession, would subject the same individual to be called upon in every case in which any question in his department of knowledge is to be solved. Thus the most eminent physician might be compelled, merely for the ordinary witness fees, to attend from the remotest part of the district, and give his opinion in every trial in which a medical question should arise. This is so unreasonable that nothing but uecessity can justify it. The case of an interpreter is analogous to that of an expert. It is not necessary to say what the court would do if it appeared that no other interpreter could be obtained by reasonable effort. Such a case is not made as the foundation of the motion. It is well known that there are in Boston many native Germans and others skilled in both the German and English languages, some of whom, it may be presumed, might without difficulty be induced to attend for an adequate compensation." In the case of The People v. Montgomery, 13 Abb. Pr. (N. S.) 207, Montgomery was indicted for murder. The district attorney had procured the attendance of Dr. Hammond as a witness to testify professionally in the case, who was paid, or was to be paid, the sum of $500, for his attendance and services as such witness. This was complained of as an irregularity. The court said, E. D. Smith, P. J., delivering the opinion: "We do not see that the calling of Dr. Hammond as a witness and the payment to him of a sufficient sum to secure his attendance at the court during the trial was in any respect an irregularity, or did any wrong to the prisoner. It seems to us that the district attorney was acting in the line of his duty as public prosecutor in securing the attendance of a proper medical witness of high repute to meet the distinguished medical experts, which he knew the * * * The prisoner expected to call on his side. district attorney, it is true, might have required the attendance of Dr. Hammond on subpoena, but that would not have sufficed to qualify him to testify as an expert with clearness and certainty upon the questions |